Why can't we be like France? How the right to bear arms got left out of the Declaration of Rights and how gun registration was decreed just in time for the Nazi occupation.

• Author: Halbrook, Stephen P.
• Position: Introduction to III. The French Declaration of Rights of 1789: How the Right to Keep and Bear Arms Got Left out, p.1637-1666 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. Foreign Law in Supreme Court Firearm Law Cases A. Printz v. United States (1997): Congress May Not Commandeer the States to Administer the Federal Gun Control Act B. Small v. United States (2005): Foreign Convictions Do Not Preclude Gun Possession C. District of Columbia v. Heller (2008): The Second Amendment Really Does Guarantee the Right of "the People" to Keep and Bear Arms D. McDonald v. City of Chicago (2010): Application of the Second Amendment to the States II. The Nazi Experience in Congressional Debate on Bills to Register Firearms in the Gun Control Act of 1968 III. The French Declaration of Rights of 1789: How the Right to Keep and Bear Arms Got Left Out A. Cahiers de Doleances (Statements of Grievances) 1. The Third Estate Demands a Right to Keep and Bear Arms 2. The Nobility Demands Gun Control 3. Mixed Demands by Various Jurisdictions B. From the Storming of the Bastille to the Abolition of Feudalism C. The Declaration of Rights IV. 1935: Prime Minister Pierre Laval Decrees Firearm Registration V. The Nazi Occupation A. Twenty-Four Hours to Surrender Firearms or Face the Death Penalty B. Amnesty or Execution? The Dilemma After a Year of Non-Compliance C. The Death Penalty for Not Denouncing Others in Possession of Firearms? D. From the Occupation of Vichy France Through the Allied Invasion Conclusion: Be Careful What You Wish For [F]ew saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed.... However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once. --Judge Alex Kozinski (1) INTRODUCTION

Should the Second Amendment to the U.S. Constitution be watered down to protect little if any right of the people to keep and bear arms in accordance with European models? (2) Disregarding that the United States won its Revolution based on that very right, recent statements made by Supreme Court Justices suggest they believe so. (3) Part I of this Article discusses four opinions in which Supreme Court Justices opined inconsistently using the experiences of European countries as models in construing the meaning of firearms laws and determining their constitutionality under the Second, Tenth, and Fourteenth Amendments.

This same debate has been played out in Congress, where registration of firearms, supported by arguments in support of European models, has been rejected. (4) Part II traces the debate from the beginning of World War II in 1941 through passage of three major firearm laws in 1968, 1986, and 1993.

A guarantee of the equivalent of America's Second Amendment was considered but not adopted by the French National Assembly in the French Declaration of Rights of 1789. (5) As discussed in Part III, Third Estate bodies throughout France demanded that commoners have a right to possess arms, while the nobility sought continuation of their traditional monopoly of arms.

Without recognition of this right, the French government of Prime Minister Pierre Laval easily decreed the registration of firearms and firearm owners in 1935. (6) As Part IV notes, Laval would later become the chief architect of collaboration with Nazi Germany.

When Nazi Germany occupied France beginning in 1940, it relied on the French police and its own military might to confiscate firearms and to subject gun owners to the death penalty. (7) Part V traces how the police could use the firearm registration records to ferret out gun owners, evolving Nazi policies for both amnesties and executions to enforce the gun ban, and how uncertainty regarding who refused to surrender firearms made it less secure for the Nazis.

This experience exemplifies America's Second Amendment as a "doomsday provision," as Judge Kozinski articulated. (8) As Part VI concludes, advocates of watering down the Second Amendment by looking to foreign experiences would do well to consider France's tragic history. (9)

1. FOREIGN LAW IN SUPREME COURT FIREARM LAW CASES

   1. Printz v. United States (1997): Congress May Not Commandeer the States to Administer the Federal Gun Control Act

      The federal Brady Act of 1993 commanded state and local law enforcement officers to conduct background checks on handgun buyers. (10) The Supreme Court in Printz v. United States (1997) declared this conscription of the states to administer a federal regulatory program beyond the power of Congress to regulate commerce among the states and inconsistent with the reservation of powers to the states in the Tenth Amendment. (11)

      Writing for the Court, Justice Scalia noted that dissenting Justice Breyer

      would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. (12) Indeed, the Framers knew about many federal systems in history but rejected them. (13)

      Justice Scalia continued: "Antifederalists ... pointed specifically to Switzerland--and its then-400 years of success as a 'confederate republic'--as proof that the proposed Constitution and its federal structure was unnecessary." (14) He cited speeches by Patrick Henry in the Virginia Ratifying Convention of 1788, but did not discuss their content. (15)

      Patrick Henry, a leading Antifederalist, had argued: "Switzerland is a Confederacy, consisting of dissimilar Governments.... In this vicinity of powerful and ambitious monarchs, they have retained their independence, republican simplicity and valour." (16) After James Madison painted a gloomy picture of the Swiss Confederation, (17) Henry retorted:

      Switzerland consists of thirteen cantons expressly confederated for national defence. They have stood the shock of 400 years: That country has enjoyed internal tranquillity most of that long period.... Those virtuous and simple people have not a mighty and splendid President--nor enormously expensive navies and armies to support.... Let us follow their example, and be equally happy. The Honorable member advises us to adopt a measure which will destroy our Bill of Rights. (18) Without discussion of Henry's oratory, Justice Scalia concluded: "The fact is that our federalism is not Europe's. It is 'the unique contribution of the Framers to political science and political theory.'" (19) He did not analyze whether federalism in Europe may be quite diverse, an irrelevant issue given that the only issue was the meaning of the U.S. Constitution.

      Justice Breyer, joined by Justice Stevens, argued in dissent that European models in which states implement laws passed by the central authority should counsel interpretation of the U.S. Constitution as a matter of policy. (20) "The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central 'federal' body." (21) But these entities could not be more diverse: (1) Switzerland is the Confederation Helvetia, where the central government is limited and the Cantons retain great sovereignty, (22) (2) Germany has federal features today but Hitler's Third Reich made the German Lander (States) mere puppets of the central authority, (23) and (3) the European Union is an unelected, centralized authority which the Swiss people voted not to join. (24) Justice Breyer conceded that "we are interpreting our own Constitution, not those of other nations...." (25) While not analyzing the text or original understanding of the Constitution, he added that the experience of the European countries "may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem--in this case the problem of reconciling central authority with the need to preserve the liberty-enhancing autonomy of a smaller constituent governmental entity." (26) It remains unclear how commands by Congress to the states to administer federal laws enhances State and local autonomy. (26)

   2. Small v. United States (2005): Foreign Convictions Do Not Preclude Gun Possession

      Small v. United States (2005) held that the federal prohibition on possession of a firearm by a person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" (28) did not apply to foreign convictions. (29) The "usual suspects" among the Justices were reversed in this case--Breyer wrote the opinion and was joined by Stevens, O'Connor, Souter, and Ginsburg, while Thomas wrote the dissent, joined by Scalia and Kennedy (Rehnquist taking no part in the decision). (30) Of all things, Mr. Small had been "convicted in a Japanese court of having tried to smuggle several pistols, a rifle, and ammunition into Japan," and, after his release from prison, bought a gun when he returned to the United States. (31)

      While involving a question of statutory interpretation without mentioning the Second Amendment, Justice Breyer noted that foreign convictions may cover conduct that domestic...